Nonmeetings are not good government

Sunday

Aug 3, 2014 at 2:00 AM

There is perhaps no more abused loophole in New Hampshire's Open Meeting Law than the clause that allows governmental bodies to meet with counsel in so-called nonmeetings.

"Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people."

— Preamble to Chapter 91A, New Hampshire's law regarding access to governmental records and meetings

There is perhaps no more abused loophole in New Hampshire's Open Meeting Law than the clause that allows governmental bodies to meet with counsel in so-called nonmeetings.

That's why we heartily support the call by Portsmouth City Councilors Jim Splaine and Esther Kennedy to dramatically reduce nonmeetings and instead, when closed-door conferences with counsel are necessary, to hold nonpublic meetings as defined by law.

The key difference between a nonmeeting and a nonpublic meeting is that during a nonmeeting a governmental body does not need to say why it is going behind closed doors, does not have to vote in public to hold a secret session and does not have to keep minutes of what was discussed.

By contrast, to hold a nonpublic meeting a governmental body would need to say why it was going behind closed doors, which is only allowed for a limited number of items, the most common of which are to discuss litigation, negotiations, real estate acquisition and personnel matters. Officials would then need to vote to go behind closed doors for the stated reasons and then keep minutes of their discussions, which are generally made public once the sensitive matter is resolved. For example, minutes could be unsealed after a negotiated contract is signed or a piece of land has been purchased.

Splaine raised concerns about nonmeetings recently, noting that the City Council has held eight nonmeetings since February.

"I think our job as city councilors is to make sure to discuss the public's business in public," Splaine said in an interview with this paper. "When we do have to meet behind closed doors it should be known what we're doing it for."

Amen.

Splaine can speak with authority on this topic because he helped draft the state's Right to Know Law in the 1970s. The intent of that law, as stated in its preamble, is to encourage openness in public business.

"We should follow the Right to Know Law by intent as well as purpose instead of using what essentially is a loophole," Splaine said.

Councilor Esther Kennedy shares Splaine's viewpoint on this.

"I'm very concerned about nonmeetings because they're not spelled out in the RSAs," Kennedy said. "The city attorney is supposed to be in the room to have discussions with him."

One key problem with nonmeetings is that they operate on the honor system that discussions taking place behind closed doors are not, by law, required to take place in public. The only way the public can know whether governmental bodies are abusing the law is if one of its members blows the whistle on them.

City Attorney Bob Sullivan, who supports the use of nonmeetings, acknowledges that councilors can talk about anything they want as long as they are speaking with counsel.

We have consistently praised Portsmouth for its efforts to have open and transparent government, and replacing the use of nonmeetings with nonpublic meetings would simply enhance the city's good government reputation. If Portsmouth can conduct its business without nonmeetings, which we are certain are abused in many Seacoast cities and towns, their experience can be used by the New Hampshire Legislature as a reason to close this nefarious and unnecessary loophole.

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